Labor & Employment Law Blog

The new FCO specifically applies to employers that (1) do business in the unincorporated areas of Los Angeles County and (2) employ at least 5 employees, regardless of their location and inclusive of owners, managers, and individuals providing services pursuant to a contract. A list of the unincorporated areas of Los Angeles County can be found here.

Unlike the California Fair Chance Act, which restricts employers’ use of criminal history to evaluate applicants, the Los Angeles County FCO expressly provides broad protections for both new applicants and current employees, including those who are seeking promotions with their current employer. An employee must perform at least two hours of work on average per week within the unincorporated areas of the County to be covered by the FCO.

The FCO contains a variety of requirements applicable to covered applicants and employees, including:

• Employers cannot prevent or discourage employees with criminal history from applying for roles. All job postings must include specified language that the employer will consider qualified applicants with arrests or conviction records in accordance with law.
• If an employer intends to review criminal history in connection with a conditional offer of employment, the employer must include in the job posting all material job duties that the employer reasonably believes that criminal history may negative and directly impact, potentially resulting in withdrawal of the offer.

• Employers cannot inquire into an applicant or employee’s criminal history before making a conditional offer of employment, and must provide specific written notice that criminal history will be reviewed with the conditional offer. If the employer is going to request a criminal history report, the employer also cannot ask the applicant or employee for information about their criminal history before the employer receives the background check report. The employer must provide a copy of the report to the applicant or employee.

• There are restrictions on the types of criminal history that may be inquired into or upon which an adverse action may be based. This includes, with limited exceptions, a prohibition against consideration of a conviction that is more than seven years old, measured from the date of disposition.

• There are requirements for an employer to conduct an individualized assessment in writing of the direct and negative impact of the criminal history on the ability to perform job duties, before taking an adverse action or denying the applicant or employee a position; to provide preliminary notice of the proposed adverse action to the applicant or employee; to receive and consider any additional information the applicant or employee wishes to provide; and to provide specified final notice to the applicant or employee. The employer must share its individualized assessments with the applicant or employee.

• There are requirements to post the FCO notice in a conspicuous place in the workplace and on webpages frequently visited by employees, in English and any other language spoken by at least 10% of the workforce. The model English notice is available here.
• Employers must retain records relating to their compliance with the FCO (such as job postings, employment applications, individualized assessments, notices, conditional offers, rescissions of offers, and any correspondence from the employer, applicants, and any third parties relating to the FCO) for at least 4 years following the employer’s receipt of the applicant’s application.

Additional details and information about the FCO can be found within the County’s FAQs webpage. In addition, the County will soon be publishing Rules and Regulations to clarify the FCO, which will be posted here.

Employers with questions about the FCO or the use of criminal history in employment may contact the authors of this article or their usual AALRR counsel.

This AALRR publication is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR publication does not create an attorney-client relationship. The Firm is not responsible for inadvertent errors that may occur in the publishing process.

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